Wednesday, 28 May 2014

The Pro-European case for a renegotiation of and referendum on the UK’s membership of the EU

By Steve Peers

The Prime Minister, lacking a majority in the House of
Commons, is harried by his Eurosceptic backbenchers. He promises a renegotiation
of the UK’s membership of the EU, followed by a referendum on whether to stay
in. It’s 2014 – but it’s also 1975.

That renegotiation and referendum ultimately resulted in a
landslide vote in favour of staying in the EU. While the circumstances are
different in some respects in 2014, there is a strong case for repeating this
process.

The argument for a referendum on the EU has so far been made
either by those who are opposed to the UK’s membership of it (UKIP), or as a
concession to those backbenchers who are highly critical of it (the
Conservative party). On the other hand, it has been resisted by those who are
most in favour of the EU.

In that light, the purpose of this post is two-fold: (a) to
make a pro-European case for a referendum and (b) to describe exactly how the
UK should renegotiate its membership beforehand.

The pro-European case
for a referendum

The case for a referendum on EU membership should stand on
its own, and should not be seen as a defensive reaction to the results of the
most recent European Parliament elections.

First and foremost, since 1975 there have been five major
Treaty amendments, as well as substantial enlargement of the EU. The political
and economic circumstances of the country, and the EU as a whole, have clearly
changed. There is therefore a principled argument for allowing the voters to
give their fresh consent (or not) for these developments.

Secondly, the continued pro-European rejection of a
referendum has made it possible for critics of the EU to characterise
pro-Europeans as anti-democratic. Of course, it can be argued in response that
representative democracy is also a valid form of democracy, one with longer and
deeper roots in British political culture, and that the UK Independence Party
has never (at least to date) won a single seat in the House of Commons. But in
light of the growing tradition to decide important constitutional questions by
popular referendum, that counter-argument has diminishing force. After all,
voters cast their vote at general elections for many reasons besides their view
on membership of the EU.

More broadly, pro-European opposition to a referendum makes
it look as if pro-Europeans do not have the courage of their convictions. If the
EU is, as they say, such a good thing for the UK, why fear a popular vote on
it? In fact, on several occasions, pro-Europeans have promised a referendum on some aspect of the EU, and then apparently
(if not technically) reneged on their promise. This gives the impression that
pro-Europeans cannot be trusted, and so leads some voters to question the
honesty of their arguments. The longer that pro-Europeans resist the case for a
referendum, the more that these negative impressions will grow. Put simply, the
pro-European resistance to an in/out referendum is surely damaging the
pro-European cause.

While Labour and the Liberal Democrats have promised an in/out referendum, this would only take place in the event of a new Treaty
transferring powers from the UK to the EU. While it is possible that there will
be negotiations for Treaty amendments in the next few years, it is
inconceivable that those parties would agree to the transfer of fresh powers
from the UK to the EU in that context. So that referendum promise is
meaningless. The Labour and Liberal Democrat position is like promising that if
I had a sex change, I would stay married to my wife. But I’m not going to get a
sex change.

In any event, the very offer of an in/out referendum, even if the conditions for it to be held are unlikely
ever to be satisfied, undermines the logic of the arguments against having such
a referendum.

It must be emphasised that the case for a referendum is
non-partisan: advocating a referendum does not necessarily mean supporting
British withdrawal from the EU, or supporting any other policy espoused by the
Conservative party.

So the pro-European response to calls for a referendum
should no longer be to find an excuse not have one, to promise one and renege
on that promise, or to promise one that will never be held. It should be, simply: Bring it on.

Renegotiation of UK
membership

Before examining the details of renegotiation, one critical
rule must be set down at the outset. Any renegotiation position must avoid
insisting upon Treaty amendment, or upon a change in EU law which necessarily
involves Treaty amendment (such as complete UK control over the free movement
of persons). That’s because a Treaty amendment will be far more difficult to
achieve, in particular if it becomes bound up with other possible amendments to
the Treaties concerning other issues. Those who demand that such renegotiation positions
(such as full control over the free movement of persons) should be a ‘red line’
are essentially dishonest. If that issue is crucially important to them, they should
instead call for UK withdrawal of the EU, with all of the consequences which
that entails.

In fact, back in 1975, other Member States agreed to a
renegotiation consisting of amendments to EU secondary legislation, and the
British public ultimately accepted that deal. Again, it would be possible today
to address many of the issues arising from the UK’s membership of the EU by
amending secondary legislation. Indeed, Jean-Claude Piris recently argued
that the negotiation demands set out by David Cameron could all be addressed by
amendment of secondary EU legislation.

As discussed in a previous post, this is correct. However,
there is a risk that the critics of the EU would not be entirely satisfied by
it. The better strategy is therefore to aim for an intermediate course: in
conjunction with amendments to EU secondary legislation, there should be a decision of the EU Heads of State and
Government, meeting within the European Council, which constitutes the EU’s
response to the renegotiation request.

Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties
ratifying the Maastricht Treaty and the latter Member State’s difficulties
ratifying the Treaty of Lisbon. In the latter case, the European Council also agreed
the broader legal and political context of this decision: the decision was ‘legally
binding’, it did not constitute a Treaty amendment, and its content would be
set out in a Protocol to be attached to the Treaties in future. Indeed, the latter
protocol was subsequently signed as promised. The UK could be offered a
similar commitment.

In order to indicate more clearly how the renegotiation
would work, the annex to this post suggest a possible wording for such a
decision, based upon the 2009 Decision concerning Ireland, adapted to the
Conservative party’s negotiating demands.

The Heads of State or Government of the 28 Member States of
the European Union, whose Governments are signatories of the Treaties,

Taking note of the concerns of the British people identified
by the Prime Minister of the United Kingdom,

Desiring to address those concerns in conformity with the
Treaties,

Having regard to the Conclusions of the European Council of [xx
date] 2017,

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

In every forthcoming enlargement of the European Union, the
current Member States agree that the free movement of persons from a new Member
State will be dependent on a unanimous decision of the Council, which will be
taken at the latest once the income of the new Member State concerned is 75% of
that of the other Member States of the European Union.

Section B

Free movement of persons and social benefits

The Heads of State and Government confirm that, in
accordance with the jurisprudence of the Court of Justice of the European
Union, Member States may deny benefits to nationals of other Member States who
are not workers or self-employed persons.

Note: see the recent
Advocate-General’s opinion in the Dano case (press release here); see also the
previous post discussing the current limits on expelling persons following
unemployment and/or requests for social assistance.

Section C

Powers of national parliaments

The Heads of State and Government take note of the
Commission’s firm commitment that, building upon the Protocols on national
parliaments and on subsidiarity and proportionality attached to the Treaties,
it will withdraw any proposal which is opposed by one-third of Member States’
parliaments.

Section D

Economic reform

The Heads of State and Government [make specific commitments
as regards free trade agreements and amendments to EU legislation, or refer to
such agreements and treaties which have already been agreed].

Section E

Policing and criminal law

The Heads of State and Government reaffirm the United
Kingdom’s sovereign power not to opt in to proposals for new legislation on
criminal law or policing pursuant to the Protocols attached to the Treaties,
and the provisions of the Treaties which require respect for the national identity
and legal system of every Member State.

They confirm their strong support for the ongoing process of
reform of the system established by the European Convention on Human Rights.

Note: if the process
of ECHR reform is completed before the UK renegotiation of its EU membership,
there could be a more specific commitment to give effect to the results of that
process, for instance ratifying a new protocol to the ECHR.

Section F

Reduction of EU
competences

The Heads of State and Government reaffirm that In
accordance with Article 48 TEU, the competences conferred upon the Union can be
reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose
to exercise its competences less intensively in those areas where it shares
competence with its Member States.

Note: this could be
accompanied by specific commitments to repeal or reduce the scope of some
existing EU legislation.

Section G

‘Ever Closer Union’

The Heads of State and Government confirm that the
commitment in the Treaties to ‘ever closer union’ has no specific legal effect.
It does not require that further competences be conferred upon the Union, or
that the Union must exercise its existing competences. Nor, in accordance with
Section D, does it constrain the Member States from adopting Treaty amendments
which reduce the Union’s competences, or constrain the Union from choosing to exercise
its competences less intensively.

9 comments:

Well, the Legal service of the Council will surely be able to defend that whale is a fish if the need be, but this proposal does not hold:

1) You claim here that secondary law changes suffice, yet some provisions will clearly contradict the wording of primary law (e.g. section C) or are in practice toothless (e.g. section F)

2) As the European Council does not exercise "legislative function" after the Lisbon Treaty (Art. 15/1 TEU), I am not sure on what ground the decision will be "legally binding". It is rather going to be in a legal limbo unless it is attached as a Protocol (see the previous fate of Czech exception from the Charter). Yet this is Catch 22, because many do not want to have a treaty change (Merkel), which means the Protocol will sit on the fence for a long time and it will be unfair to present it to the British voters in a referendum as a done deal.

3) Distant observation: I do not live in the UK but it seems to me that despite all legal problems with meeting Cameron's demands, these would not really persuade the British people to vote no to withdrawal. "Free market only" relations are not going to work either because that means EEA status and free movement of persons. In my view the politicians shall explain to public that with all opt-outs the UK enjoys nowadays almost a la carte position that could hardly get better. If the British want to have different EU, they have to persuade other states to hop on the (UKIP/part of conservatives) bandwagon.

1) The wording of section C assumes that the Commission would be willing to make such a commitment, and simply refers to it. Nothing in the Treaties stops the Commission from making such a commitment. Section F itself may not have any legal effect, but the amendments to legislation it refers to would do. Also there is a political dimension - the need to confirm that the Treaties do not include a legal commitment to move toward ever more integration.

2) I'm not suggesting a decision of the European Council, but a decision of the Heads of State and Government, just like those relating to Denmark and Ireland. In the Rottmann case the CJEU (at para 40) said that the decision relating to Denmark had to be taken into account when interpreting the Treaties. So such decisions clearly mean have legal value are not in a legal limbo. As I say above, it would be possible (as with the case of Ireland) to commit to attaching this text to the Treaties in the form of a protocol at a later opportunity, such as the next enlargement or in the event that there is a broader Treaty amendment process.

3) There is already a significant and lead for a 'yes' vote, as you can see from the latest poll, pictured above. Polls also show that support for a yes vote would rise following a renegotiation: see http://yougov.co.uk/news/2013/05/07/eu-referendum-paradox/

Many thanks for your answers, to which I would like to make brief rejoinder:

1) It seems to me you are mixing political and legal measures. May COM commit internally to withdraw proposals affected by yellow card?- yes, but the value of this "promise" is really low and does not even bind COM itself. May there be a secondary act or interinstitutional agreement commiting COM to withdraw?- no, it is contra Treaty. Therefore, could we have a hybrid, that is political commitment expressed in a decision you claim is legally valid? Very shaky ground...

2) The problem is that European Council is now official institution and there should be no role for "Heads of State and Government" acting in official position. Ireland and Denmark decisions are pre-Lisbon, no wonder the ECJ accepted the Denmark Decision as the core of it had long been part of primary law. The Renegotation Decision will not have such advantage. The Czech opt-out is more telling: it was agreed pre-Lisbon by Heads of State and Government (although not by "decision" but only mentioned in Conclusions), yet it was not attached to the Croatia Accession Treaty as promised and it was not because Czech govt demanded that (at that time, now it is different). Moreover, I do not see any enlargement or broad amendment process on the horizon to "officialise" the Renegotation Decision.

I guess everything is (as always in the EU) just a question of interpretation and consensus, if all actors agree to your solution, I have no problem accepting it :-)

3) Glad to hear that and this information shall be work on as much as possible, I agree that going head-on to the referendum is the only option, this back and fro discontent between the UK and EU could not last forever.

I'm not going to address legal technicalities here – but the pro-EU argument for an In/Out referendum. I think it'd be a big mistake for pro-Europeans to go down this route, for both policy reasons and tactical political reasons.

First, and more importantly, policy. If we want real reform of the EU that in effect "refounds" or relaunches it in a way that can gain more political legitimacy and buy-in from the people of Europe (that's definitely what I want) then I think what we actually need is change to the way the EU works as a whole – not just opt-outs for the UK or pledges of limited safeguards against specific future risks. But I'm not sure why other member states should engage in that sort of process if one of the main countries wanting it, the UK, may end up pulling out anyway regardless of what changes are agreed. Would we agree to changes to the CAP to appease French opinion, if we thought France was going to leave anyway?

I think the "negotiate, then maybe Brexit" approach is almost designed to achieve, instead, the sort of quick and dirty cosmetic package of concessions we actually need to go beyond, and which is unlikely to change many minds. It'd be much better for a pro-EU government to negotiate for reforms, its partners knowing that it will simply implement any agreement that reduces EU power, and then aim to show the voters over three or five years what reform can mean, rather than just tell them.

Secondly I think it's a tactical error. The received wisdom is that a Yes vote would "settle" the EU issue for some time – but there's no reason to think it would at all. Brexiters are determined and persistent. Last time we had a referendum, offered by Labour as you say, there was a decisive Yes; yet within five or six years Labour was committed to withdrawal (with no promise of a referendum). If Tony Benn didn't see the issue as "settled" back then, there's no reason to think Bill Cash or Nigel Farage will see anything as settled nowadays. They'd soon be back with demands for another referendum within a few years, and certainly if there was any subsequent treaty change or enlargement.

We could easily "sleepwalk" into exit from the EU, and that sleepwalk would be by means of this sort of "just checking" referendum. There could easily be a low turnout, many people would say they misunderstood what was at stake, it being no clearer what the UK's status would be outside the EU. And many people would vote no for reasons unrelated to the In/Out issue. For instance, some would vote No because they didn't like the concession package, or the government of the day.

It's much better, constitutionally, in policy terms and tactically, to adopt the position that those who want a major change, like Brexit, should first gain power, then put a definite proposition to the people – as is happening in Scotland now. Pro-Europeans should not accept a logic which would involve putting the UK's future at risk every few years or so just so as to stop a substantial minority from complaining.

We don't adopt this approach with any other major moral or constitutional issue: hanging, say (just to check every so often that people still don't want it), or abortion (just to check people still want that to be legal) or the Union (just to check every now and then that all the nations of the UK want to stay). In all these cases, opponents of the status quo have to get power first with a mandate to make or propose changes; the same should go for anyone who wants Brexit.

Thanks for your thoughts, Carl. On the first point, I agree that it would be better to have reform of the EU as a whole, rather than a package of UK-specific concessions. In fact, Cameron said that this was his preference in his January 2013 speech, and most of my suggestions are indeed EU-wide reforms which could easily be redrafted so that they are no longer specifically directed to the UK.

On your second point, you seem to be assuming a dichotomy between 'leaving the EU' and 'staying in as it is', whereas I think 'staying in following reform' is a genuine third option which all pro-Europeans ought to support and rally behind. I appreciate that Nigel Farage and co will still advocate Brexit even if they lose, but then again Tony Benn never had much traction with his continued anti-EU arguments after the 1975 referendum.

Hi Grahame, I don't think I need to update the points about the pro-EU case for a referendum, since it will now happen regardless. (But some will surely ponder the question of whether it would have been better for the Labour party politically to support a referendum in advance of the 2015 election).

On the content of the renegotiation, yes, I have come and will come back to this on the blog many times - a couple of times already when Cameron made his EU immigration speech in November, and again in the near future, perhaps when and if Cameron makes it any clearer what his negotiating position is, and probably many more times to come after that.